Crown bid to seize Bowmanville grow house rejected

Owner not responsible for tenant’s activities

Gavel

BOWMANVILLE -- A Crown bid to seize a Bowmanville house used as a marijuana grow op eight years ago has been rejected by the Ontario Court of Appeal.

Although it found the original judgment against the Crown by a Durham judge was flawed, the court ruled that ordering the owner of the Strike Avenue house to forfeit it to authorities would be “manifestly harsh and unjust”.

“It is clearly not in the interest of justice,” said the Court of Appeal ruling, released May 16.

At issue was a motion by the provincial Attorney General to seize the house under the Civil Remedies Act, legislation that allows the Crown to seek forfeiture of properties deemed to have been used for criminal activities. The court ruled that although Superior Court Justice John McCarthy erred in his reasons for rejecting the application in April of 2013, the Crown’s appeal nevertheless ought to be dismissed.

The stringent measure would unfairly impact property owner Roger Parker, whose son, Fred Parker, was busted by Durham police for drug offences on three separate occasions between 2006 and 2011, the court ruled.

Although it’s well established that the Strike Avenue house was used as a marijuana grow op in 2006, there’s no evidence Roger Parker condoned or benefited from his son’s criminal activity, the court ruled.

Interestingly, the appeal court found that Justice McCarthy arrived at the right decision on the application -- but for the wrong reasons.

The Durham judge ruled the AG’s application ought to be rejected because there was a six-year lapse between the time of the grow op bust in 2006 and the filing of the motion in 2012. The judge also ruled that Roger Parker could not rely on a “responsible owner” exception in the legislation, typically used by property owners affected by the behaviour of their tenants.

But the AG acted properly, filing the forfeiture motion promptly after police recommended the measure in 2011, the appeal court found. The court also noted there is no limitation period in filing the motions.

That ruling might have overturned the original decision, but for a finding by the appeal court that Roger Parker shouldn’t be punished for criminal activity in which he had no active role.

“Roger is entirely innocent of any involvement in and derived no benefit from his son’s unlawful activities,” reads the ruling, written by Justice James MacPherson and adopted by Justices Eileen Gillese and Eleanore Cronk.

The court awarded Mr. Parker $10,000 for costs of defending the appeal. The matter of costs for the original application is still pending.

Jeff Mitchell is the justice reporter for Metroland Media Group in Durham Region, Ontario.